Payne v Payne - The Long Goodbye Continues

As someone whose life is unduly preoccupied with thinking about relocation law, I find it fascinating that the English courts cannot bring themselves to say, in straightforward terms, what we on the sidelines have known for so long - Payne v Payne has had its day.

For anyone not familiar with Payne, it's a 2001 Court of Appeal decision which places considerable focus on the fact that the applicant was the mother, and that she was the child's primary carer. Looking back over the earlier authorities, those facts were almost always true, and so it is perhaps unsurprising that the court's guidance about how to approach such cases in the future took this as being inevitable.

In the 15 years since the case was decided, much has changed, and the reality is that there is a far greater range of post-separation care arrangements on the ground now than there was when Payne was decided. Consequently, when thinking about a question as important as whether a child should be taken to live in another country or not, the relevant considerations are now also more varied, and - crucially - the guidance stemming from Payne may or may not be especially helpful.

The Court of Appeal said as much in the 2011 decision of K v K, but the majority judges (Black and Moore-Bick LJJ) were clearly of the view that the answer did not involve abandoning Payne. On the contrary, Black LJ stressed that Payne remained helpful, but that judges were required to use it as general guidance, not as a straitjacket - the weight given to its various factors would be varied depending on the facts of the particular case being decided.

I have long been sceptical of this approach. In an article published last autumn, Edward Devereux and I suggested that it was unrealistic to expect judges to make these kinds of adjustments on a case-by-case basis, when the guidance that they were being asked to adjust started from such a one-sided position.

And so it has come to pass. The latest Court of Appeal decision on international relocaiton - Re F (International Relocation Cases) - over-turns an experienced Circuit Judge's decision because she focused too much on the Payne criteria and not enough on an overall assessment of welfare. Well, don't say you weren't warned.

In its latest comments on Payne, the Court of Appeal has reached new extremes of contortion. We are told that "it would seem odd indeed for this court to use guidance which, out of the context which was intended, is redolent with gender based assumptions as to the role and relationships of parents with a child" (para 18). We are told that the questions asked by Payne "may or may not be relevant" (para 18). We are told that "[s]elective or partial legal citation from Payne without any wider legal analysis is likely to be regarded as an error of law" (para 27).

Payne is also criticised for its lack of focus on the child's views about the decision or, putting it more broadly, its lack of consideration of how the child should participate (paras 18 and 40). It is also impliedly criticised for its focus only on the proposals of the parent seeking to relocate, since in Re F the court emphasises the need to look holistically at the available options from a welfare perspective, and not to approach the options in a linear manner.

So all around, this seems to me to lead to the obvious conclusion that Payne is no longer a useful authority. So why won't they just say so? Let's put poor Payne out of its misery and start again with some sensible guidance which can be applied to all relocation cases without confusing hard-pressed trial judges and requiring unnecessary appeals.

Prorogue No More?

Prorogation of jurisdiction might not sound like a terribly sexy topic for a blog post, but the decision of the Court of Justice of the European Union in Case C-436/13 E v B (1 October 2014) is rather important for family lawyers with an international element to their practices.

 

Proro-what?

 

I guess the first question many readers might have is: what is prorogation?

 

This all relates to the question of when a court has jurisdiction (power) to deal with a case when there is an international aspect to the matter. In children cases, the normal test is simple: the court that has jurisdiction is the court of the country in which the child is "habitually resident". Prorogation is about an alternative basis for jurisdiction, and we use it to refer to the courts of one country gaining (or retaining) jurisdiction in a dispute where another country's courts would otherwise be dealing with the case.

 

Its application in international child law comes from Article 12 of Council Regulation (EC) 2201/2003, commonly known as the Brussels II Revised Regulation, the relevant parts of which read:

 

"Article 12

Prorogation of jurisdiction

 3. The courts of a Member State shall also have jurisdiction in relation to parental responsibility ... where:

(a) the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State;

and

(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child."

So there are a number of elements here which determine when a court of one country has jurisdiction outside the normal rule that jurisdiction comes with habitual residence:

1. the child has a substantial connection with the country, e.g. by being a national of that country or by one parent living there;
2. the parties to the proceedings (usually the parents) accept the jurisdiction expressly or in an unequivocal manner;
3. their acceptance is 'at the time the court is seised' (meaning when the court proceedings start); and
4. it is in the child's best interests.

The second of those limbs was considered in passing by the Supreme Court in a case called Re I [2009] UKSC 10. In that case, Lady Hale suggested that is was likely that the second limb would mean either that the parties accepted the court's jurisdiction at the time the case started, or that they had previously expressly indicated that they would accept it (para 35). However, that issue did not matter in Re I, and anyway it is a question of European law and so only the Court of Justice of the EU can determine it authoritatively.

 

And that brings us to E v B.

The facts


The case arose from a preliminary reference from the English Court of Appeal. In short, the parties had lived in Spain where their child, S, was born in 2006. Legal proceedings took place there, the effect of which was (in the old English terms) that the mother had residence and the father contact. This position was reached following an agreement in July 2010, which was incorporated into a court judgment in Spain in October 2010.

 

The mother presumably then moved to England, though that minor detail appears not to be mentioned in the CJEU judgment, since in December 2010 the mother applied to the English court for orders which would reduce the amount of contact that the father had. In January 2011, the father responded by seeing orders in the English court to enforce the existing Spanish orders. At the subsequent hearing in December 2011, the mother "acknowledged that ... she had prorogued the jurisdiction of the [Spanish court] under Article 12(3) of [Regulation (EC) 2201/2003]" (para 21). The October 2010 order was therefore enforced in the English court.

 

The mother then brought proceedings in Spain, seeking to transfer jurisdiction to England. The Spanish court ruled that there were no live proceedings in that court, and therefore that there was nothing to transfer. In June 2012, the mother applied again to the English court, and this time the High Court Judge determined that the English court did indeed have jurisdiction to hear her application. The father appealed, and the Court of Appeal made the preliminary reference to the CJEU.


The decision


The CJEU held that the question of whether a court had jurisdiction had to be answered (a) in relation to the specific proceedings in question (para 40), and (b) at the time the court is seised, i.e. "when the document instituting the proceedings is lodged with the court" (para 38). (Also, regardless of that, "jurisdiction ... must be determined, above all, in the best interests of the child" (para 45).)


The upshot of that is:

"that a prorogation of jurisdiction ... is valid only in relation to the specific proceedings for which the court whose jurisdiction is prorogued is seised and that that jurisdiction comes to an end ... following the final conclusion of the proceedings from which the prorogation of jurisdiction derives" (para 49)

In other words, the parties can agree that an existing case shall remain with the courts in country X even if the child moves and becomes habitually resident in country Y; or the parties can agree, at the moment that new proceedings are proposed, that they will accept that country X will deal with it even though the child is habitually resident in country Y; but, crucially, the parties cannot agree in advance that they will accept jurisdiction in country X for potential future proceedings.


Why does that matter?


Well, on the basis of the Supreme Court's comments in Re I, it has become common in relocation cases for the parents to agree that, when the child relocates abroad, the English courts will retain jurisdiction for some period of time (up to two years is common). The upshot of E v B is that those agreements are entirely worthless.


The parties can agree that ongoing proceedings will remain in England, but as soon as those proceedings end - which they usually do as soon as the relocation order is formally made - then prorogation is no longer effective. If there are future proceedings needed (which are fresh proceedings - you cannot usually revise old proceedings once they finish), the parties can then agree to accept the English courts as having jurisdiction - but the parent who remained in England after the relocation cannot rely on an earlier agreement, no matter how clearly stated, as the basis of jurisdiction later.


For those involved in relocation disputes, whether as lawyers or as parents, this decision is of high importance.

Thanks to Janet Broadley of Bindmans Solicitors

 for bringing this judgment to my attention.

The Strange Case of Surrogacy Law

A surrogacy arrangement arises when one woman carries a child with the intention that she will not be the child's mother. Agreements to do this are not "enforceable" in English law -- meaning that you cannot force someone to follow through on an agreement if they enter into one -- but they are not "illegal" as long as you don't pay for the service. (Expenses can be paid, but no fee for the service.)

When the child is born, the people who are to be the child's parents apply under s 54 of the Human Fertilisation and Embryology Act 2008 for a "parental order", which transfers the child's legal parentage from the woman who carried the child during pregnancy (and who is automatically "the mother" in law when the child is born) to the intended parents.

That's all quite progressive, in many ways, but there is an oddity. Section 54 says this:

“54  Parental orders

(1)     On an application made by two people (“the applicants”), the court may make an order providing for a child to be treated in law as the child of the applicants if—

(a)     the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,

(b)     the gametes of at least one of the applicants were used to bring about the creation of the embryo, and

(c)     the conditions in subsections (2) to (8) are satisfied.

(2)     The applicants must be—

(a)     husband and wife,^[1]

(b)     civil partners of each other, or

(c)     two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.”

The question is why parental orders are available only on an application by "two people". (Insofar as two people apply together, I have no difficulty in the further requirements set out by subsection (2).) Two analogous areas of family law reveal that the law is, in general, accepting of single people becoming parents via state-sanctioned means, namely adoption and children born following assisted reproduction.

In terms of adoption, section 51 of the Adoption and Children Act 2002 allows an adoption order to be made "on the application of one person". Similarly, a single woman can receive treatment at a clinic and have a child using donor sperm, and that child will have only one legal parent. 

Consequently, the law provides that: 

-- a single woman may become a child's sole legal parent using donor sperm; 

-- a single person, whether a man or a woman, may become a child's sole legal parent under adoption law; and 

-- any "two people" who are a couple (whether married, civil partners, or in a stable cohabiting relationship) can become a child's legal parents via a parental order following a surrogacy arrangement. 

Given these provisions, it is difficult to see any reasonable justification for preventing a single person becoming a child’s sole legal parent using a parental order. It cannot be said now (as perhaps it couple have been before the 2002 and 2008 Acts) that the law’s aim is that children have two legal parents, since there are two distinct ways in which the law allows a child to have a sole legal parent. Nor can it be said that the law has any policy of favouring, say, women as sole parents, since a single man can adopt under the 2002 Act (and in any case, such a policy would obviously be entirely unjustifiably discriminatory). 

So what could be the aim? It is difficult to think of one. What we see here, I suspect, is a position reached by piecemeal development which has accidentally created an anomaly. However, this anomaly is unjustifiable and creates discrimination against single people -- especially single men, who have fewer ways of becoming a parent in the absence of a partner than do single women. 

It's a small point, perhaps, but I think an important one. Also one that is very easy to change. 

---

[1] Presumably by oversight, the Marriage (Same-Sex Couples) Act 2013 does not amend this subsection to include married same-sex couples, though the 2013 Act does make consequential amendments to most other similar phrases, including in several other sections of the HFEA. 

“A Narrow Textual Analysis”: Re P (Relocation) [2014] EWCA Civ 842

Last month, the Court of Appeal allowed an appeal against a trial judge’s decision to refuse to allow a mother to relocate permanently with two children, aged 3 and 2, to Germany. The basis for that appeal was that the judge had made a key finding about the mother’s motivation for seeking to relocate which was unsupported by the evidence. However, that conclusion relies on what the House of Lords once described as “a narrow textual analysis which enables [appellate judges] to claim that [the trial judge] misdirected himself”, and thus allows the appeal court “to subvert the principle that they should not substitute their own discretion for that of the judge”.

The crucial passage of the trial judge’s judgment was at para 16, where she said this:

"What is the mother's motivation to relocate to Germany?  The mother's case is that she and the children will live in Germany where they will enjoy a better standard of living.  I do not accept that that is her true or primary motivation.  I am satisfied that the mother's primary objective for relocation is to limit the involvement of the father in the lives of the children.  It is the mother who wishes to control the father's relationship with the children and not the father exercising control over the mother.  Living in Germany with the children I am satisfied that the mother perceives that she would be the parent with control.  Maintaining the father's relationship through contact is not high on her list of priorities."

In the Court of Appeal, Ryder LJ considered that, aside from this issue about the mother’s motivation, “the other factors that are identified in the judgment would have left the cases of the mother and father relatively evenly balanced” (para 9).

Two concerns therefore arise out of the Court of Appeal’s decision to allow the mother’s appeal (aside from the cost and delay of a re-trial).

The first is the basis on which the Court of Appeal criticised the judge for her conclusions about the mother’s motivations. There was some discussion in the Court of Appeal about how, bar one short period of time, the mother had always complied with the contact arrangements which had been put in place by consent. Ryder LJ criticised the judge for “eliding” (a) a motivation to limit contact to that set out in the order, and (b) a motivation to limit the father’s role in the children’s lives. The Court of Appeal also considered that a transcript of the evidence did not support the conclusions reached by the judge.

With respect to Ryder LJ, none of these points necessarily undermines the trial judge’s conclusions. When a judge sees a witness give evidence, far more is communicated to her than the mere words said. The judge is able to, and is entitled to, assess the demeanour, tone and attitude of a witness, and the judge may not be able to express in exact language why she reached the conclusion that a witness was honest or not, evasive or not, and so on. As Lord Hoffmann once put it:

“specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance. . . of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.”

A judge with 12 years’ experience as a full-time judge sitting in family cases is entitled to use her judgment to assess a witness’s motivation, both from things said and by inference, and then to rely on that assessment. That is what judges are paid for. If it were only a matter of recording the words said, oral evidence would be a complete waste of time. The skill and experience of the trial judge goes far beyond that, and needs to be respected by the Court of Appeal.

The second point of concern is the apparent weight that Ryder LJ appears to give to the fact that, aside from the mother’s motivation, the case might be seen as finely balanced. Leaving aside the motivation point, the mother was bringing an application and therefore faced the task of persuading the judge that making an order for relocation was better for the children than making no order at all: Children Act 1989, s 1(5). If the matter was finely balanced without regard for the mother’s motivation, and if the mother’s motivation is one relevant factor (which clearly it is), it is very hard to see that the decision which the experienced trial judge took to refuse the application was “wrong”.

Re P shows the Court of Appeal engaging in a narrow textual analysis to overturn a decision with which it disagreed, but which was reached on a legitimate basis and cannot genuinely be said to be wrong. Any judgment can be criticised for the precise way in which issues are put or the details included or omitted. That cannot be the way for an appeal court to operate, both because the appellate system would become unworkable and because it misunderstands the overall point of a judgment, which is to give sufficient explanation of the reasoning process undertaken by the judge in reaching her conclusion. 

Listing Relocation Cases

For some time, colleagues at the Bar and I have been sharing concerns that under the draft guidelines for case allocation in the new Family Court, almost all international relocation cases will be listed in front of District Judges.

The draft guidelines put cases into three categories:

1. cases involving proposed moves to countries which are not signatories to the 1980 Hague Convention on child abduction -- High Court Judge

2. cases involving proposed moves to countries which are signatories to the 1980 Hague Convention -- District Judge

3. cases involving proposed moves to countries which are signatories to the 1980 Hague Convention but which are unusually complex in legal or factual terms -- District Judge or, exceptionally, Circuit Judge.

This allocation marks a dramatic change from just a few short years ago. As late as 1993, it was being said that all international relocation cases should be reserved to High Court Judges or, if necessary, senior Circuit Judges sitting in the High Court. In 2009, Lord Justice Wall in the Court of Appeal said that Circuit Judges would normally hear international relocation cases, and that District Judges should hear them only if the judge had special experience to make him or her suited to such cases. My research on relocation cases in 2012 showed then that about 20% of international relocation cases were being heard by District Judges. So finding that almost all relocation cases should now, by default, be listed in front of DJs is quite a turn around.

Why does it matter, you might ask. Put shortly, there are two concerns. One is simply that international relocation cases are actually very complex. Even a "straightforward" case involves the potential for a serious, long-lasting changes to the child's relationship with one parent (usually the father) if the relocation is allowed, and a serious restriction on the freedom of the other parent (usually the mother) if the application is refused. There are also legal complexities with making on-going contact orders which are effective after a relocation, and real care and expertise is needed to make sure that such orders are worth the paper that they're written on.

The second concern is about appeals. Child law cases heard by District Judges are, ordinarily, heard on appeal by Circuit Judges, whereas cases that start in front of Circuit Judges are heard on appeal in the Court of Appeal. The safeguard of having a potential for review by the senior judges of the Court of Appeal is very important -- to me, almost essential -- when dealing with such major decisions as international relocations.

Anyway, these concerns appear to have been making their way through the system, and a well-placed source (I want to say "a leading member of the sieve", but I'm not sure how many people would get that reference...) has told me that the matter is now being re-considered. I for one would certainly favour a system that gave these important cases a default allocation to a more senior level of tribunal, with the possibility for genuinely straightforward cases to be moved down if that seemed appropriate to the gateway judge.

Ryder LJ and the Meaning of Non-Accidental Injury

A couple of weeks ago, the Court of Appeal (Tomlinson, Ryder and Christopher Clarke LJJ) gave judgment in Re S (A Child)[2014] EWCA Civ 25. The case involved a small child who was the subject of child protection proceedings, the question in short being whether two skull fractures had been inflicted upon her intentionally by one of her parents, or had arisen as a result of an accident.

In itself, that is a common enough question for family courts to be asked in child protection cases. It is standard practice to refer to these two categories of cause (accidental or intentional) as 'accidental injury' and 'non-accidental injury'. This is so common that practitioners often abbreviate the latter as 'NAI'. So my interest in Re S relates to a single paragraph of Ryder LJ's leading judgment, where the judge said this:

1. The term 'non-accidental injury' may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a 'catch-all' for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and / or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).

As a matter of etymology, Ryder LJ is quite right that the word 'injury' carries with it a fault element. For lawyers, its links with the latin injuria are obvious, and the OED's first definition says 'Wrongful action or treatment; violation or infringement of another's rights; or mischief wilfully and unjustly inflicted'.

Which is fine, except... that's not how the word is actually used in modern language. We use it to mean physical damage, especially to the body of a person or animal, with no implication of wrongful cause. For example, when the BBC said a few days ago that 'Arsenal boss Arsene Wenger said he would not have signed midfielder Kim Kallstron had he known about the Swede's back injury earlier', that was a perfectly acceptable way to say that the footballer had hurt his back when he fell over during training. It was no one's fault. It was in no way 'wrongful', but it still makes sense to say that he is injured, or that he has an injury. Indeed, it was an accidental injury. When time is added to a sports game under the heading of 'injury time', it may well be time that was spent treating a player who hurt him or herself falling over or pulling a muscle, without any 'wrong' from another player.

Nor indeed is this broader use anything new. Looking down further on the OED's definition, we find meaning 3: 'Hurt or loss caused to or sustained by a person or thing; harm, detriment, damage'. The OED traces this usage to 1430, but their 1555 example of 'the injury of time consuming all things' ('Thiniurie of tyme consumynge all thynges') seems particularly instructive. The ravages of time can hardly be said to have a fault element to them.

So, with all due respect to Ryder LJ, I don't think that the phrase non-accidental injury is tautologous. It makes perfect sense, as does the phrase 'accidental injury' which the judge describes in para 20 as 'an oxymoron that is unhelpful as a description'. On the contrary, I think this phrase to be perfectly meaningful and of potentially great use in the context of child protection proceedings. 

Relocation Disputes: Approaches in England and New Zealand

It's just a couple of weeks now until the publication of Relocation Disputes: Law and Practice in England and New Zealand (Hart Publishing, pictured). "Finally", you say, "the ideal stocking-filler present that I've been waiting for!" I'm fully supportive of that idea, so for those who aren't tempted enough by the lovely Edward Hopper on the cover ("Route 6 Eastham", 1941), here's a little more about the book.

This book started life in 2007, when I began my doctorate at the University of Oxford. I was interested in looking at how the family justice system deals with cases involving children, and a colleague had suggested that relocation disputes might make an interesting case study. Relocation cases, which I've written about here a couple of times before - see here, here and here for the main posts - are disputes between separated parents where one of them (usually but not always the mother) seeks to take the child to live somewhere else, and the other parent objects to that proposal. The 'somewhere else' can be a relatively short distance away, such as the other side of a large city or another nearby town, but in terms of cases which reach the attention of the law they more commonly involve longer distances, and in particular they often involve proposed international moves.

Relocation cases are commonly thought by judges and lawyers to be amongst the most difficult cases that they deal with between parents. While there are exceptions, in general what you see in a relocation dispute is a conflict between two very good, very committed parents, both of whom have legitimate desires and plans regarding their children. The legal framework governing the resolution of these disputes is actually quite straightforward in most jurisdictions. In England and Wales, s 1 of the Children Act 1989 makes the child's welfare the court's paramount considerations, while in New Zealand s 4 of the Care of Children Act 2004 makes the child's welfare and best interests the paramount consideration. The difficulty and complexity stems from the fact that we have to work out what that actually means in the relocation context.

In order to do that, I started by going back through the reported cases. The first, a case called Hunt v Hunt, comes from 1884, but the modern principles began to be developed by the English Court of Appeal in 1970, in a case called Poel v Poel. This case guided the courts in both England and New Zealand for many years. It was abandoned by the New Zealand courts in 1995, with their Court of Appeal decision in Stadniczenko v Stadniczenko, and was superceded in England by the 2001 Court of Appeal decision of Payne v Payne. In Chapter 2 of the book, I look at these shifting patterns in the case law, and at how the legal principles evolved and were interpreted and re-interpreted over the years.

But cases in appeal courts and in the official law reports can only tell you so much. I wanted to know what was really happening on the ground, and how those professionals who have to use the law in their work saw it. So I set off and interviewed trial judges, barristers, solicitors and welfare advisers who were experienced in relocation cases in both England and New Zealand. The views and experiences of the 44 men and women who talked to me as part of that study form the core of this book.

Chapter 3 contains the real comparison between the two jurisdictions and their quite different ideas about what 'welfare' means in the relocation context. I gave all my participants three identical case studies about different types of relocation disputes and asked them to tell me what factors they thought would be important in coming to a decision, and what the likely outcome would be if the case went to court. The enormous variation in the approaches of participants in the two jurisdictions was amazing, and the 'classic relocation case', involving a hypothetical child called Tom whose mother wanted to move to America with her new American husband, was the one that showed up the differences in approach most starkly.

From there, I focus in on the two jurisdictions in turn, asking practitioners to talk about their general experiences of relocation law and to evaluate the positive and negative aspects of their system. These discussions reveal a wealth of information about the practical working of the law, and about lessons that can be learnt both in terms of working well within the existing law and in terms of possible law reform.

Reform of the law is indeed the focus of the final chapter of the book. Relocation is one of the most controversial areas of family law, and in many jurisdictions around the world there is discussion about whether they can be dealt with better. I review a number of possible suggestions that have been put forward, and end with a discussion of an idea of mine which comes out the study.

Obviously I can't tell you if it's any good, but Mr Justice Peter Jackson of the High Court in London says in a review for the cover that the book "holds up a mirror to what we do in relocation cases, and draws a map of where we might want to go. More than that, we see how lawyers and judges think about hard decisions, and how studies of this kind can help us think more clearly."

--
Relocation Disputes: Law and Practice 
in England and New Zealand is published 
by Hart Publishing on 17 December 2013.